Registering with a new agency: NDA and contract
Thread poster: Elise Le Mer

Elise Le Mer  Identity Verified
United Kingdom
Local time: 20:09
Member (2011)
English to French
+ ...
Mar 20, 2012

Dear all,

I am contacting you as I am currently registering with an agency in Rumania, and I am a little puzzled with a couple of clauses in their NDA and 'Service Level Agreement' (that is how they call one of the contracts), so I would like to have your feedback.

Responsiveness and contactability. The Vendor shall be contactable at the contact details supplied to [THE AGENCY] in the registration form and otherwise during [THE AGENCY] working hours or part thereof. The Vendor undertakes to inform [THE AGENCY] of changes in contact details and to give [THE AGENCY] advance notification of periods of unavailability. After Vendor’s confirmation of a project, the Vendor undertakes to respond to [THE AGENCY] within 2 hours from receipt of a request related to such project.
The Vendor undertakes to review Purchase Orders supplied by [THE AGENCY] upon receipt and to bring any errors to the attention of [THE AGENCY] prior to commencing work on the contracted Services.

Ownership of translation. [THE AGENCY] owns all copyrights in the work product upon full payment of the agreed fee.
This is then further detailled in the NDA:
3.4 The Vendor acknowledges and agrees that any and all of the Intellectual Property Rights used or embodied in, or arising in connection with, source materials, the output of translation memory tools and the content of machine translation tool repositories are and shall remain the exclusive property of [THE AGENCY] and its licensors.
3.5 [THE AGENCY] shall own all right, title and interest in and to all translations in progress and translations, including all Intellectual Property Rights therein and
thereto. The Vendor hereby irrevocably assigns to [THE AGENCY] all Intellectual Property Rights in and to all translations in progress and translations.

For the responsiveness and contactability, I just find this a bit too much. When I am working on a long, difficult translation, I don't check my emails all the time. Besides, I see no reason to inform the agency of when I take days off or holidays. Lastly, Rumanian working days and hours might conflict with my working hours in the UK...
For the copyright clause, I was under the impression that the translator always kept his or her intellectual property, including when working with an agency. Am I wrong in thinking that?

Thank you for your help and feedback. I find these contracts very varied and at times, unfair, but I am wondering what our community of translators thinks.

Elise


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Natasha Liberman  Identity Verified
United States
Member (2012)
Russian to English
+ ...
Who owns the translation Mar 20, 2012

Hello Elise,
I have signed a number of NDA's in the US and they all (100% of them) contained the intellectual property clause, which in various wording stated that the translation was the property of the agency.
I have never seen a responsiveness clause like this one, and the 2-hour part of it does seem a bit severe - can you negotiate it?


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Samuel Murray  Identity Verified
Netherlands
Local time: 21:09
Member (2006)
English to Afrikaans
+ ...
IANAL Mar 20, 2012

Elise Le Mer wrote:
For the responsiveness and contactability, I just find this a bit too much. When I am working on a long, difficult translation, I don't check my emails all the time. Besides, I see no reason to inform the agency of when I take days off or holidays.


Absolutely. Cross out that section from the contract. However, I do think it is good manners to let the agency know whether you are a full-time or a part-time freelancer, i.e. whether translation is something you do in your spare time or something you do for a living.

For the copyright clause, I was under the impression that the translator always kept his or her intellectual property, including when working with an agency.


Whether you are in fact able to sign away your own copyright is a matter for lawyers in your own country. However, let me ask this: given that you would not be able to use the translation for any other purpose (owing to confidentiality), does it really matter whether you remain the copyright holder of the translation?


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Woodstock  Identity Verified
Germany
Local time: 21:09
German to English
+ ...
They have probably had bad experiences Mar 20, 2012

in the past that prompted these draconian demands, but usually there are federal laws in each country regulating self-employment that would supersede those of an individual agency. I really doubt there is any legal basis for such requirements, but I'm not a lawyer, so don't take my word for it. I live in Germany and certainly the HGB (Handelsgesetzbuch) is the law of the land for self-employed people, not what an agency feels that it should be. If you are interested, you might check your own country's laws, or check on what the EU says about it. The agency is trying to protect itself, but - I would venture to say - is trampling on the rights of freelancers by doing so. I would never sign a contract that tries to dictate how I run my own business, but each to his/her own. Personally, that type of thing irritates the heck out of me, and I usually reply very succinctly, though, stating in no uncertain terms what my legal rights are.

Here's a link that applies to the EU. http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/selfemployedperson.htm

I didn't read it through so not sure how applicable it is to your situation, but you might just want to do a little research to find out just what your rights really are.

My 2 cents.


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Iain Coulthard  Identity Verified
Hungary
Local time: 21:09
Member (2011)
Hungarian to English
Are we resources? Mar 21, 2012

These days I get the feeling we are being treated as mere resources to be accessed when and how the agency demands. If I were you, though, I wouldn't worry about that clause, if you violate it what can they do? At the most they stop giving you any more work.

I wouldn't work for them though:)


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xxxchristela
No problem for me Mar 21, 2012

Elise Le Mer wrote:

After Vendor’s confirmation of a project, the Vendor undertakes to respond to [THE AGENCY] within 2 hours from receipt of a request related to such project.


Please note that the two hours period is the period for a request, after confirmation.
I think this is reasonable. We do not live on a mountain top anymore but one can reasonably expect that we have e-mail and cell phones.
Imagine, for instance, that the project is cancelled.

The intellectual property clause is fine for me. I do not know to whom source texts and translations belong, in each case not to the translator, maybe except book translations and other litterature.


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Tomás Cano Binder, BA, CT  Identity Verified
Spain
Local time: 21:09
Member (2005)
English to Spanish
+ ...
Do not sign yet Mar 21, 2012

I know that so many agencies are very keen on making you sign a lot of papers before they even have a first job for you, but I would strongly recommend not to sign anything until they have an actual order and PO for you.

If they say that they cannot consider you for jobs until you have signed all the paperwork, it is probably best to let them go.

I would say that about half of the contracts and NDAs I have signed all over the years were for companies who never sent any work, and one of my long pending tasks will be terminating the contracts as soon as I have a couple of quiet days. It is best not to enter the contracts until there is real work already assigned to you.


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BeaDeer  Identity Verified
English to Slovenian
+ ...
When you work for an agency ... Mar 21, 2012

... they subcontract their work to you, so it's essentially a commercial relationship with contractual obligations and there should be no subordination between the agency and yourself.
In the eyes of law (EU), if you can be told how, when and where you do your work, there is subordination and the agency could be considered liable for paying your pension and health insurance, if you decided to sue them. Imo, if they want you to be available for a certain number of hours during the working week, why not pay you on a retainer basis in addition to the work they subcontract to you. As regards the copyright: the content you translate may not matter to you much or at all, but why give the agency permission to use it to build a TM for their own profit? Not that they are unable to do it without your permission by aligning the files now, but if you are giving it away of your own free will, you would be better off finding a 9 to 5 job.


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Phil Hand  Identity Verified
China
Local time: 03:09
Chinese to English
Couple of reasonable solutions Mar 21, 2012

1. Add in the words "working days" to the contact part. You don't have to get back within 2 hours at the weekend, but during the day Mon-Fri could be OK.

2. Only include your phone number in the contract, not your email. If the agency thinks something is important enough to call you about, you probably want to know, and just by answering the phone you fulfill your obligations. Otherwise, the temptation for PMs to send random emails is too great.


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Elise Le Mer  Identity Verified
United Kingdom
Local time: 20:09
Member (2011)
English to French
+ ...
TOPIC STARTER
Thank you! Mar 23, 2012

Thank you to everyone for your (varied) comments, ideas and feedback.

Basically, you all agreed that the copyright clause was fine.
For the working hours/availability part, there was much more debate.

I have decided to sign the contracts, although a little reluctantly. My reasoning was mostly that the 2-hour rule applied only once I had accepted the work, in which case I agree that I should be contactable. The rest of the availability clause was a little odd, but ok, and the PM I am in contact with, is nice and respectful, so it probably boils down to a bad experience, as someone suggested.

Thank you again!

Elise


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philgoddard
United States
Member (2009)
German to English
+ ...
It's not worth worrying about. Mar 23, 2012

They're not going to enforce it. The two-hour response time is just waffle, and the copyright issue isn't going to apply unless you translate Harry Potter books.

The other thing I find a pain about these agreements is that you have to print them out, sign them, scan them and send them back. You should just be able to send an email saying "I agree to your terms," and that would be a valid contract.

[Edited at 2012-03-23 17:22 GMT]


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